One year has passed since the appointment of the new government. Undoubtedly, some changes have taken place and further changes are being discussed. However, there is one very important – perhaps the most important – issue, which has been entirely ignored. This fundamental omission concerns the stability of Sri Lanka as a nation; it is something that underpins the achievement of peace and the economic progress of the nation. The elephant in the room that has been ignored is the ability to enforce law in Sri Lanka.

Currently, all these institutions are in extremely dysfunctional states. The citizens of this nation suffer in a state of anarchy. The word anarchy here refers to the failure of the State to enforce the law through its legitimate agencies, such as the police, the corruption control agency, the Attorney General’s Department that is involved in the prosecution of offenses, and the Judiciary that is meant to adjudicate and ensure justice.

This anarchy is, of course, not a problem that has been created by the present government. It is a product of many factors, which includes the failure of the infant State, which came into being on 4 February 1948, to grown up into an adult State. The growth of an infant state into an adult one means that the state is able to develop just laws and is able to enforce those laws through its legitimate organs.

The Sri Lankan State has, however, not yet learnt the basic skills of running a state apparatus. This has been the cause of many problems. These problems include extreme forms of violence, which developed, particularly since 1971 and for many decades after, and serious conflicts relating to the inability to provide equal protection of the law to everyone, including the minorities. Despite the present government not having a hand in these factors, without solving this problem, it cannot help Sri Lanka attain any of the dreams it has spoken about, or help realize some of the dreams people now dream about.

Practically speaking, a person who sets out to pursue his or her dream should have a vehicle to travel in. For a government, this vehicle is the apparatus of the state, i.e. the legitimate organs of the government. If these legitimate organs are broken in the way the engine of a vehicle is broken or the wheels of a vehicle are broken it is not possible to makethe journey without first doing some serious fixing.

This is exactly what has happened to Sri Lanka since independence in 1948. And, it has been aggravated in the last 40 years of conflicts and violence and enormous loss of life and liberty of thousands of people.

The challenge then and now is to make the vehicle capable of moving, capable of carrying the State and the people towards their goals. And, this requires taking all the possible steps to get the essential components of vehicle, i.e. the basic State apparatus, repaired as soon as possible. This, in turn, requires human resources and also financial and other resources.

Therefore, the duty of the government, first and foremost, is to provide these resources, so that the State will once again have a functioning apparatus that the people and the government can work with. To anthropomorphise, it will have the hands, the legs, and the physical organs to work and function.

At the moment, the government has not yet given a thought to this; it has not declared its policies on this fundamental issue, of repairing the essential State institutions to both ensure justice and effectively enforce the law; and there doesn’t seem to be even an attempt being made to consider the same.

That said, an opportunity has arisen where a national discourse is possible on these issues. This opportunity has come as a result of the government announcing that it wants to change the Constitution and that a committee has been appointed to consult people about the reforms they wish the government must embark upon.

Thus, there is a possibility of vigorous discourse, in terms of what the people think are the priorities that should be achieved within Sri Lanka. And, it is to be hoped that all will participate, particularly those who are aware of what constitutions are and what they are supposed to achieve, and that in this participation an opportunity will arise to educate the population for a higher understanding of what the State is all about and how it can and should serve the needs of the people,especially the need for the protection of all persons.

To aid and further this discussion in light of the opportunity that presents,what follows is a brief description of the requirements in a functioning Sri Lankan State apparatus.Currently, there is utter dysfunctionality in the Sri Lankan Police Service, the Prosecutions Department, and the Judiciary, with the term dysfunctional here meaning that these institutions are unable to performtheir most basic duties.

So, what are these basic duties?

The primaryduty for the police begins with the facilitation of quick intake of complaints by victims of crimes and human rights abuse, in a courteous and efficient manner, so that the people have trust and comeforward to make their complaints to the organs of the state.

Following the taking of statements from complainants, the next step is themaintenanceof all the books relating to such complaints, with the highest possible protection, and not to tamper with these documents or allow any kind of distortion.

Investigating into the crimes based on the complaints, according to due process provided for in the Criminal Procedure Code, would be the next basic duty of a functional system. This would require the competence of officers to investigate.

In the modern setting, investigation capacities have been identified, and there are easily accessible opportunities for training to develop capacity for rational and efficient investigating techniques into crimes. Skills, such as the capacity to interview in an intelligent manner, the capacity to gather evidence that could be brought to the attention of the accused so that the accused may be required to explain such evidence, and the ability to effectively use modern technology for investigation, are skills that can be acquired. The skills of using forensic sciences and technology, such as recording and photographic instruments, and many other types of technologies, are constantly being developed and improved around the world, and are available at affordable prices. Competent investigators in the present age must be equipped with such technology and skills.

Next comes the duty of the investigators to provide a faithful record of what they have obtained by way of evidence to the Attorney General’s Department, without making any distortions. And, then it is for the Attorney General to pursue the record, identify if a crime has been committed, and then immediately prepare indictments if such a crime has, in fact, been discovered. This is something that needs to be done carefully, but at the same time efficiently, without the wastage of time.

And, finally we have the turn of the Courts, which have many duties. The first basic duty of the Courts in a functional system is to receive all parties that come to the Court – the police, the prosecutors, as well as the people – courteously and with due respect. Thereafter, abasic duty of the Courts is to conduct the proceedings in the manner prescribed by the law and not to allow any type of delays in this matter.

And, it is this last duty that is the greatest challenge to the maintaining of an efficient State mechanism in Sri Lanka. The delays in adjudication that are taking place in our legal system are a source of many forms of corruption and a source of many forms of abuse of power.

When a result of crime – whether a crime was committed or not – can be known only some ten or fourteen years later, at a time when the society has lost interest in this crimeand its conviction, then the system is a dysfunctional one.

To have a social impact, with a deterrent effect, there needs to be reasonably quick disposal of cases so that the people remember the crime, and they remember the punishment. And, thereby, the society can learn a lesson: to avoid certain kinds of conduct in the future.The failure of Courts by way of delays is the greatest failure, and it is something for which all Sri Lankan governments are responsible.

It is not only the Judiciary that is responsible for these failures; it is the government that must provide resources and all the facilities and also proper persons who are selected only on the basis of competence and integrity to run judicial institutions. On all these matters there have been tremendous backward steps since the promulgation of the 1972 and 1978 constitutions.

If the legal process takes place and takes place quickly, it does not merely solve individual crimes or individual abuse of violations of rights, it creates a state apparatus that the people will see as functioning efficiently and thereby it will bring about order.

It is the loss of order that is considered as anarchy. What prevails in Sri Lanka, as a result of dysfunctional basic institutions, is disorder, and disorder means anarchy.The responsibility for the prevailing anarchy must be taken by whoever is running the government at the particular time. So, despite not being behind the factors that have led Sri Lanka to this state of anarchy, it is, therefore, the new government that bears the responsibility for addressing the disorder that has spread in Sri Lanka, and it is this government that must quickly redress the problem by bringing in the necessary changes in terms of the repair work and the resources for this repair work.

It is these budgeted resources in Sri Lanka that are mostly lacking, and not as much the law. And, it is the duty of the government to provide these resources. If not, the government will fail in its primary duty, and keep the State of Sri Lanka as an infant State and thereby one incapable of serving the needs of Sri Lanka.

Mullivaikaal today is a picture perfect beach with a small fishing community. Boats line the seafront, stuffed with freshly caught fish, sting rays and even tiny sharks. It is hard to imagine that this beach was soaked in the blood of thousands of Tamils in 2009, as the Sri Lankan military indiscriminately shelled the last strip of territory controlled by the outlawed Liberation Tigers of Tamil Eelam (LTTE). The fishermen say they were allowed to return here in 2012, and the physical signs of massacre have mostly been erased now, apart from a few sand bags in a crater behind the beach. But the pain is still etched onto the memories of the survivors, and many live in ramshackle shelters struggling to make a living.

If Sri Lanka’s new president, Sirisena, can reconcile the grievances of the country’s Tamil minority, then Mullivaikaal will be a litmus test. Many of the families here are headed by widows, who lost their husbands in the final months of the war. When I asked a group of them if the new president has made any improvements to their lives, the response was a resounding no. One lady, Uma*, shrugged, held out empty hands and said Sirisena has done “nothing”. The women live in houses built by an Indian government aid scheme. For many, doors are an unaffordable extra in this scheme. Soldiers roam freely around the neighbourhood on tractors and in trucks. Plain clothed policemen turn up to women’s meetings. The beach, for all its beauty, has a very spooky atmosphere.

The Sri Lankan government has made sure that army and navy camps saturate this former rebel stronghold. Garish war victory statues blot the roadside landscape. Signs next to blown up water towers remind the Tamils to “SAY NO TO DESTRUCTION EVER AGAIN”. Driving along the highway, military bases appear every ten minutes, with grand entrances and plush buildings inside. Five-star hotels and key tourist attractions can be found inside some of these bases. Many were built on stolen land, and the displaced widows are told to register their family details with the army to have any chance of getting it back, a crude piece of bureaucratic intimidation that keeps them landless. The women say life here was better under the rebels, but that way of life has now been destroyed.

Remembering the dead

May 18 is the sixth anniversary of this destruction. All around the world on this day since 2009, Tamil people have gathered in huge numbers to remember their dead. Inside Sri Lanka, the mourning has had to happen in secret. The first year after the war ended, the Tamil Civil Society Forum tried to hold a commemoration service with priests, but hundreds of soldiers arrived outside. The army said to the organisers “If you do it I will suspect you as an LTTE sympathiser”. I.D. cards were taken from everyone and police went to priests’ homes at night and threatened to shoot them. But with a new president in place, activists are testing the waters of the so-called new democracy, and seeing what they can get away with.

“This year the commemorations will happen in public”, Father Elil Rajendram assured me. But as he is choosing a location for the memorial service in Mullivaikaal, a mysterious motorbike pulls up behind us, with the riders dressed in Denis the Menace striped polo shirts. These are intelligence officers, Father Elil explains, who are spying on the priest’s preparation. Despite the intimidation, local people still seem determined to attend. Uma says she is not scared to go, as her son was killed at the end of the war. Preparations are happening across Tamil towns and villages. As I arrive in Jaffna to meet another organiser, news comes through that his event has been banned by the police, to prevent ‘a breach of the peace’. The authorities say rival Tamil political groups could clash – a far-fetched scenario. Police seem unwilling to facilitate free assembly, instead inventing spurious reasons to ban or restrict public events.

The Tamil National People’s Front (TNPF), an opposition political party, circumvent the ban by switching locations at the last minute, and gather on a remote beach in Maruthankerni under a makeshift shelter. Buses venture for miles down a pot-holed road, and before long over a hundred people have arrived. Red and yellow bunting (Tamil national colours) is put up everywhere, and lanterns are lit. The commemoration goes ahead, but the organisers say Sri Lankan military intelligence are photographing everyone there. Father Elil’s multi-faith commemoration service in Mullivaikaal also went ahead, albeit under heavy surveillance. Participants started photographing the intelligence officers, perhaps a sign that the fear barrier is beginning to waiver. Hundreds of students and staff gathered at Jaffna university, and commemorations happened in all corners of the Tamil parts of Sri Lanka. A brave performance, but a sinister scene for a so-called democracy.

Tamil National Alliance vs Tamil National People’s Front

The Tamil National Alliance (TNA) is the traditional choice for Tamil nationalist voters, winning almost all the seats in former rebel-held areas. But many people feel that the TNA is not challenging the new president’s spluttering reforms enough. Gajendrakumar Ponnambalam, founder of the rival TNPF, says the TNA leadership gave Sirisena their “unconditional support” when he won the presidency, putting Tamils in a weak bargaining position. Ponnambalam was an MP for the TNA until the war ended, when he split from the party over fears that they were becoming compromised. Parliamentary elections are due any time in Sri Lanka, and the TNPF stands a chance of gaining at least one seat if it can reach out to Tamils who are also unimpressed by the TNA’s recent performance. But Ponnambalam says that going against the TNA with its money, media influence and historic association with the Tamil Tigers will be tough.

Ponnambalam says that even if he does not return to parliament this time, he is more interested in “building power outside the ballot box”, by which he means “mass peaceful mobilisations that could force the Sri Lankan state to make some real concessions to the Tamils”. In three decades of armed struggle, the closest parallel to Ponnambalam’s current thinking was the Pongu Thamil (Tamil Upsurge) events, which mobilised over a hundred thousand people to gather in support of Tamil self-determination year after year in towns across the region. Jay*, who was instrumental in starting those events, told me how they sent ‘animators’ to villages and organised small theatre performances, where local people gained confidence to share their stories, before coming together en masse at the Pongu Thamil gatherings. But he thinks that it could take 5 or 10 years for Tamil people to regain their confidence for that scale of mobilisation.

Protesting sexual violence or threatening national security?

And yet spontaneous protests are sweeping the Tamil regions, after an 18-year-old school girl Sivaloganathan Vithiya was brutally raped and murdered on Pungudutivu island off Jaffna on 14 May. The police allegedly told the girl’s family when they reported her missing that she had probably eloped with her boyfriend. Sexual violence in Sri Lanka has become synonymous with the security forces, but the prime suspects in this murder are Tamil civilians. A Tamil doctor told me that this case was a reflection of a wider breakdown of society under the pressure of a counter-insurgency strategy, where police and soldiers are allegedly pushing drugs and alcohol onto the youth.

Angry school kids have taken to the streets in large numbers and whole towns hundreds of miles away from Jaffna have shut down in hartal strikes. The protests reflect a widespread frustration at the vulnerability of Tamil women, and even a certain nostalgia for times when women could walk the streets safely at night in rebel held areas. But whether the protests will grow into more a sustained movement, like in India after the 2012 Delhi bus gang rape, remains to be seen. Already, hardline Sri Lankan nationalist politicians are branding the protesters as a new wave of Tamil Tiger militants, and calling for a harsh crackdown. Even demonstrations against sexual violence are seen as a threat to national security. The president has promised to create a ‘national security plan’ to prevent a ‘terrorist resurgence‘. On May 20, crowds in Jaffna were met with teargas and 127 people were arrested, as riot police, Special Task Force anti-terrorist commandos and soldiers came out on the streets.

Despite the militarised law and order situation, the UK is still training Sri Lanka’s police, even after the contract expired in March 2015. Staff from the Scottish Police College are currently in Sri Lanka on a three week visit. Their taxpayer-funded ‘aid’ work is apparently focusing on ‘community policing, ethical leadership and organisational management’. Their approach seems at odds with a police force dressed in khaki uniforms, some carrying kalashnikovs, and where the police stations in Tamil towns look more like garrisons. A Tamil Civil Society Forum member told me that “For us Tamils, police and army are in the same category. They both all speak Sinhalese [the language of the majority population]. They were the ones who started the harassment and beatings in our youth. We have not seen any improvement. When the Sinhalese police come to Tamil areas they are different people.”

‘War hero’ day

The fear of a Tamil uprising is something that resonates powerfully among Sri Lanka’s majority Sinhalese Buddhist community and generates strong support for the armed forces. The last president, Rajapaksa, embodied this anti-Tamil sentiment as he vanquished the Tigers and pushed Sinhalese settlers onto Tamil land. Although his personal corruption may have cost him the presidency, he still haunts the political landscape. The new president promised to hold a more respectful Remembrance Day, instead of Rajapaksa’s triumphalist annual War Heroes parades, on May 19. But in the end the difference was mere semantics, as the event looked the same as previous years. “Rajapaksa celebrated May 19 as ‘war victory’ day. These new people have to have an international image to say they are not Rajapaksas, that they are different and commemorate all the minorities,” said Kusal Perera, a Sinhalese journalist, “So what they did was they branded this ‘war victory day’ with a different label, to say ‘war heroes remembrance day’. But the celebrations were exactly what Rajapaksa did. Huge military parades. This is a way of keeping the Sinhala supremacist ideology going for decades to come. All these things are in the package with a different brand name called ‘remembrance day’. But if you go to the ministry of defence website the lingo is different and its still called ‘war hero’ day. It’s like selling the local Arrack with a black label.”

Even in Colombo, Sri Lanka’s capital, journalists who welcomed the new president are sceptical about what change can happen for the Tamils. Lasantha Ruhunage, president of Sri Lanka’s Working Journalist Association, said that the press face less threats now than under the previous administration, but the new president has refused to set up a commission to investigate cases of journalist who disappeared. Many more had to flee the country and still cannot return. Another reporter told me as we walked through two sets of heavy steel gates that his office was bombed twice during the last ten years, by groups linked to the government. A new Right to Information law is being drafted, which could act as a check on corruption, but Ruhunage is concerned that it includes a national security exemption with no definition of what is ‘national security’.

Scraps of land

Sri Lankan politicians have to court Sinhala nationalism and Buddhist assertiveness to stay in power. Even small scale returns of Tamil land are seen as a betrayal. If President Sirisena gives the Tamils too much before the parliamentary election, then Rajapaksa could make a come back at the polls, observers warn. But a member of the Tamil Civil Society Forum said that “If Sirisena does not even try to explain to the Sinhalese electorate why Tamils deserve their land, then he will not have a mandate to address it when he stays in power, and the Tamils will almost certainly get nothing.”

One example is the people of Sampur, who fled their land in 2006 when the Sri Lankan military attacked. Survivors say that the shelling killed 70 residents before they could escape on boats. Since then the thousand or so families have been displaced multiple times, before returning to temporary camps just across the road from Sampur in 2009. In that time, their homes had been bulldozed and the land fenced off by the Navy. Part of it was sold to foreign investors in a 4 billion USD deal to build a heavy industrial plant. But the people of Sampur refused to go away, and in a landmark case for Tamil land rights they finally won some of their land back on 20 May 2015. So far, only about a fifth of the families had got their land back and the government was yet to give any funds to rebuild the homes that it had demolished. When I visited Sampur the following day, the residents were rushing around trying to find what was left of their homes. One family only had a handful of bricks. Drinking wells had fallen into disrepair, mango and coconut trees had lost out to thorny ‘jungle’ trees. Bonfires were being lit everywhere as people hacked down the bushes and franticly tried to clear the land. The men wanted to camp there tonight, to stop the navy coming back and stealing the land again. But it was too dangerous for the women to sleep there too, they said, glancing nervously at the Navy base 100 metres down the road.

If this is Sri Lanka’s ‘new democracy’, then the Tamils are still living in the shadow of the military.

The coalition of political parties and civil society groups that came together to ensure victory for President Maithripala Sirisena at the presidential elections of January 2015 under the theme of good governance is no more. The distancing started soon after the formation of the new UNP-led coalition government and the implementation of the 100 day programme. Sharp disagreements began to emerge within the political parties in the government on issues such as the extent of power to be taken away from the president and given to the prime minister in terms of the 19th Amendment. The practice of good governance itself came under scrutiny due to the problem of the bond issue by the Central Bank that has continued to fester with damning disclosures coming to the fore. The inability to pass the 20th Amendment despite the commitment of the president showed the waning of his influence in parliament.

However, the desire of people of all walks of life to have a government that acts according to principles of good governance continues to find its expression in civil society. The better educated sections of the voting population especially in the urban areas, and the ethnic minorities who were at the receiving end of lawless rule continue to value good governance. The March 12 Movement, which intends to hold political parties to their promise to only nominate candidates who abide by the values of good governance, and who are not corrupt, violent or contravene basic standards of political conduct is an expression of this. During the past fortnight they have been going around the country collecting signatures to meet their target of one million. This is a declaration that has also been signed by the leaders of all major political parties, including the president, prime minister and leader of the opposition.

In the context of the exposures of corruption and promises made of good governance during the presidential election campaign, and the continuing civil society desire for good governance, the decision of President Sirisena to agree to nominate the former president has come as a major surprise. During the presidential election that took place in January, the parties that supported President Sirisena, and the president himself, made it clear that the practices of former president, Mahinda Rajapaksa, were the very epitome of what had to change. The way in which the former president had concentrated power in himself and his family, and the abuse of power for personal and monetary gain, was highlighted in the election campaign. But today, in a turn of events that is shocking to many who sought a new Sri Lanka, the former president is back in the SLFP and will presumably be campaigning on the same platform as the president.

Silent Revolution

Political parties are machines meant to capture and retain political power. The problem for President Sirisena has been his dual role as president of the country committed to good governance, and his role as president of the SLFP committed to giving his party members the best chance of electoral victory. Unless there is a higher morality at play in society that affirms, as the March 12 Movement is saying, that some things cannot be done, such as nominating those who are corrupt and violent to hold office, political parties will nominate them to win elections. In the absence of this higher morality, and as the leader of the SLFP, President Sirisena was bound to give deference to the majority opinion within his party. Their argument was simple and logical. The party would do best if President Sirisena and former president Rajapaksa were on the same side and did not divide their forces. As a personality who is non-authoritarian and in the absence of any institutionalization of the values of the March 12 Movement, President Sirisena seems to have felt that he had no option but to accept the wishes of the majority.

MaithripalaIt is a time honoured observation that politics is the art of the possible. The compulsion of securing victory or the best possible result for his political party at the general election seems to have forced President Sirisena to permit the former president to contest from within the party, even though the former president’s practice of governance when he was in power was in direct opposition to the fundamental precepts of good governance. However, it is also worthy of note that no sooner had he agreed to the nomination of the former president, President Sirisena promised that would not abandon good governance or permit those who are corrupt to ruin the country again. He recalled that his presidential election victory “brought about a change which the country needed. The expectations of the people who brought about the silent revolution will not be shattered.”

In bowing to the wishes of the SLFP to bring former president Rajapaksa into the electoral contest, President Sirisena has been democratic to his party members. He has heeded the voice of the majority in the party who wish to win at the forthcoming general elections and believe that the former president’s presence at the campaign will contribute to their victory. However, the active presence of the former president during the election campaign, within the party and in parliament in the future, does not necessarily mean that President Sirisena will abandon his commitment to good governance. It is still possible that having led his party to the best possible electoral outcome, the president will be able to obtain the cooperation and loyalty of his party members after the elections to institutionalize good governance in the country.

President’s Role

Former president Rajapaksa has shown himself to be a resilient politician. When he lost the presidential election with two years left of his second term, after a bitterly contested election, it seemed unlikely that he could have staged the comeback that he has. But though he has been brought back into the SLFP as a candidate for election it does not necessarily mean that he will command the same degree of popular support he once enjoyed. At the presidential election in January the former president had the benefit of unlimited state resources, including government money and media, which were used in a way that contravened election law and for which crimes some of the former government members are facing prosecution. He got 5.8 million votes, but still lost. This time around neither the former president nor the SLFP will have such advantages. They no longer hold governmental power during the election. In addition, during the past six months there has been a stream of revelations of misuse of power and corrupt practices.

The likely scenario at the forthcoming general elections is that no single party, or alliance of parties, will get an absolute majority in parliament. While the former president’s entry into the nomination list of the SLFP will prevent the breakup of the party and its campaign, it will also alienate a significant sector in society who are looking for good governance and who will now need to look elsewhere for their political representation. The UNP, which has been out of power for most of the past two decades, and which showed the possibility of a change in political culture and governance over the past six months, is most likely to be the beneficiary. In particular, the lifting of the fear psychosis that held society in mental chains and the steps towards the reintegration of the ethnic and religious minorities into the mainstream of society came almost instantaneously due to the shift in the policy and outlook of President Maithripala Sirisena and the UNP government.

In the eventuality that no one party secures a majority in parliament the role of the small parties and ethnic minority parties will increase. This will mean the formation of a government in which power is checked and balanced. In these circumstances the role of President Sirisena who, despite the passage of the 19th Amendment, continues to be vested with significant executive powers, will be crucial. The campaign of the March 12 Movement and other civic campaigns need to be strengthened so that the President is constantly reminded of, and supported in, his commitment to good governance even in the new circumstances.

Being confined to the “boondocks” of Sri Lanka gives one a particular advantage in having access to the rural pulse of this country.

The unbelievable turmoil in matters political in the Miracle/Debacle of Asia is probably without precedent in the post-independence history of this country. There is no longer “left” and “right” in Sri Lankan politics or the three choices that S.W.R.D.Bandaranaike claimed we had when his Sri Lanka Freedom Party introduced his briefly-touted “middle way.”

We have before us and one needs add the proviso, “at time of writing” given the constantly changing allegiances, a real political “mallung.”

That said, let’s get down to the nitty-gritty of the current situation.

In less than two months we will be faced with an opportunity to decide whether we want a democratic dispensation of a traditional (western?) kind, with all of its myriad shortcomings, or an autocratic government operating on a bed of corruption and violence. We have in our history after 1948 experienced both of these in a variety of manifestations.

My reading of January 8th 2015 is of a nation’s decision – even if one accepts the argument that the margin of victory might well have been constituted by the so-called minority communities – to reject the wholesale plunder of the national treasury by making “commissions” the cornerstone of the alleged economic development in Sri Lanka which, in its corrupt and violent entirety, had reached depths not achieved previously except, perhaps, in the first burst of the J. R. Jayewardene “liberalization” of the later 1970s. In President Jayewardene’s case his invitation was to the offshore “robber barons” who gladly accepted. In the case of the Rajapaksa dispensation, it has been far more local with the siphoning off of huge sums of money that should have gone into real economic activity into the pockets of a pyramid of corruption.

MaithripalaHowever, the immediate result of a seeming freeze on the most outrageous of these such as the port- and land-expansion monstrosity in Colombo, has been a concomitant freeze of economic activity downstream from the primary projects.

While there is no gainsaying the environmental degradation resulting from the massive harvesting of granite and sand from various parts of the country, with no prior evaluation whatsoever, it did provide employment to those blasting the rock, (illegally) ‘mining’ sand, transporting both commodities and those engaged in applying that raw material at the sites where the construction and land reclamation was happening, in Colombo.

The sight of 57 tipper trucks apprehended at one completely illegal sand-mining site a few days ago certainly gladdened the hearts of those who have been appalled by the seemingly endless environmental degradation – truly the rape of a nation – that has been going on for several years. But, and this is a “but” that only the myopic will disregard, the apprehension of those trucks and their operators has closed out the employment of dozens of workers “downstream” from that event.

Make no mistake, I don’t think there is any moral or economic justification for activity that enriches a miniscule minority of this country’s population while the other side of that ledger means permanent damage to this country’s environment and to the vast majority of its people.

But remember that old chestnut, “In the long run, we’ll all be dead?” That is the moral dilemma that the coming election presents to many: do you bite the bullet, no matter what the pangs of hunger (literally) might be, in the interests of real economic development and recovery or do you go along with what was, blatantly, the status quo up to the 8th of January 2015?

In some cases, the response is going to be a “no brainer” in that workers who have to find the means of feeding their dependents will have little choice but to respond to the “here and now” and simply go with what keeps them and their children from a premature grave.

What complicates the equation further is the fact that a significant number, if not the majority, of voters see many of the so-called “leaders” of the current dispensation as not only reaping the benefits of President Sirisena’s victory but acting in such a manner that, should there be a return of the Rajapaksa Regime, they will in no way suffer.

The government is seen as going after the sprats of corruption while the sharks swim free! Will this perception lead to a significant enough number of voters either sitting on their hands at voting time or (God forbid!) voting for those they only succeeded in dislodging a few months ago, using that old excuse of “better a thief you know than one you don’t?”

There is also the matter of the huge profits that big business and the banks have made under the Rajapaksa dispensation. Make no mistake they know how to read a bottom line and how and when to defend it and they have an excellent stalking horse with which to do it in the person of Mahinda Rajapaksa who has never failed to tout himself as a socialist and a “man of the people.”

There has also been the bubble of accelerated business activity generated by the flood of “black” money. Since Sirisena’s victory, the price of land in our part of the world has dropped significantly and the current wisdom is that it is directly attributable to the springs of “black” money not flowing as freely as they did in the recent past.

The stock exchange, sans the “pump and dump” manipulations with “black” money and with state funds from such as the National Savings Bank and the Employees’ Provident Fund and the proceeds of “commissions,” has similarly slowed to a crawl according to observers.

An economic bubble created by letting loose a flood of “dirty” money appears to have burst and its impact is being felt in both the formal and informal sectors of Sri Lanka’s economy.

Another factor of major consequence is the army of the corrupt that has built up over the years and which is not going to stand by and lose control of their streams of income. Make no mistake, there is “critical mass” here in terms of the politicians from the lowly Pradeshiya Sabha member to those who held positions of power and importance in the Mahinda Rajapaksa regime. Their futures are now indissolubly linked with that of our recently deposed monarch and they are not “going to go gentle into the night.” Everything from their Gucci footwear to their luxury limos will be at stake on the 17th of August 2015 and they will unleash whatever it takes to survive (and thrive). This, in fact, could be the single most important factor in what lies ahead for this country and what I have to say in the paragraphs that follow this statement is going to be vital in that context.

In a very real sense, corruption and illegality has ruled this country and the affairs of Sri Lanka have been conducted accordingly. We are now going to have to endure an economic and political revolution before some sense of sanity is restored.

Not easy, by a long shot!

There is a great deal to do and very little time in which to do it in the matter of building on the foundation of principle that was laid on January 8th 2015 and I would make the (obvious) observation that desperate situations call for radical responses.

The governing group, the United National Party in particular, needs to divest itself of those with so much as a taint of corruption about them. The whole “Affaire Arjuna Mahendran” left a bad taste not only in the mouths of the so-called sophisticated middle-class of this country but appears to have percolated down to the allegedly less-sophisticated in our society who, like anyone with a nose, can smell a rat! This is perceived, in some quarters at least, as a classic case of a reversal of the need for justice not only being done but being seen to be done. The public perception is that the government and its leadership has not come clean about this whole sorry episode and that there is, at best, sleight of hand and, at worst, a cover-up. I have been told by several who claim to know Mr. Mahendran very well and have nothing to gain from defending him that he is totally incapable of what he is being accused of. It might still not be too late for Ranil Wickremesinghe and Co. to clear the air on this matter or have they caught the contagion of monumental arrogance that ultimately did Mahinda Rajapaksa in?

Far more serious and more difficult of solution is the matter of ridding the leadership of any government that emerges victorious after the next election of every single one of those with even a vestige of corruption about them. I am not about to repeat a list of those that both I and the general public are already well acquainted with. Mr. Wickremesinghe has to choose the national good over considerations of “political loyalty” and rid himself of the asps that he has, perhaps for reasons of loyalty, chosen to clasp to his bosom. In the general population, even his worst critics, acknowledge Ranil Wickremesinghe as an honest and capable man in financial and political matters but they do not view many of those he has surrounded himself with in a similar light. And with good reason. In affairs political, it is obviously not easy to do what I am suggesting must be done but given the situation in Sri Lanka, nothing less will suffice, particularly since several of them have, pretty openly, bought “insurance” in the event of Mahinda Rajapaksa’s return. Many of them have enough intelligence and political knowledge to be consigned to some diplomatic Coventry. They might serve us acceptably in such locations as Washington or the Court of Saint James, for instance.

While the postings suggested could well be an option, the bottom line is that they must be got rid of because the last thing that this country needs and can tolerate is a bunch of wolves in sheep’s clothing!

Excellencies of the diplomatic community, Mr Abeykoon, Secretary to the President, officials of the Presidential Secretariat, ladies and gentleman,

It may sound as if I am repeating what has already been said when I say that I share the sentiments expressed by both Mr. Dhanapala and Prof. Munasinghe. To me, as a citizen, the 19th Amendment brings new beginnings. I say that because, sometimes we suffer in this country from a collective sense of amnesia. We also know that this country has many good laws. But our problem is that even when we have the law in the books and we do not implement it. However when we look at the 1978 constitution we note the fact that law was not in place because we had many restriction on the democratic process and it was a law that needed to be changed. It was distressing to see the debate on the 19th amendment and I think that is why I said we have a collective sense of amnesia, because we know as citizens what happened and how the constitution is interpreted and particularly through the 18th amendment how we saw how a government which had come into power with massive peoples power eventually dismantled democracy. It was distressing to see in parliament what should have gone through with absolute consensus, as an opportunity for democracy had to be negotiated in a process that in my view, undermined some of the opportunities for Constitution making. As a lawyer I have to say that the 19th amendment is a reflection of new beginnings, but as a lawyer I want something more, I want for this country fundamental constitutional change and constitution making because that is a challenge of a country that has emerged from a period of armed conflict. That has been the experience of nations. A new constitution in a participatory consultative environment which is not top down, can address the need to heal wounds, and to really make for fresh beginnings. And I certainly hope therefore, as a citizen of this country, every single party that is seeking our votes will come forward with an agenda of complete constitutional reform. Having said that I also recognize the difficulties of doing that in the kind of adversarial political environment that we have. And it is therefore in that context that we have to see the 19th amendment, as Dr. Jayantha Dhanapala said, as creating the opportunities for democratic culture and for addressing the democratic deficit that we have seen in this country. It is that context that I would like to make a few comments to add to what has been said by the other speakers.

The first point is that this amendment provides us with an opportunity to connect the whole development process and the discourse on development with a human rights based approach. That focus has not been there in the past. And the strengthening of the democratic deficit comes with the idea that here you have a concept of the people’s sovereignty and of people’s rights. We talk people’s sovereignty but we didn’t talk people’s rights. The 19th amendment connects the concept of people’s sovereignty and people’s rights through establishment of some of the key norms of democratic governance associated with the democratic process. And I think this is very important because it provides a vision for development where there will be public accountability and scrutiny of development processes. Hopefully, the process of achieving development goals will also be based on the need to really address the issue of people’s rights. And this is why the restraints on presidential power are key. The concept of presidential power has been enshrined in this article because there was so much controversy. People were feeling that they have to have an executive presidency, if you don’t have executive presidency with power, you have a diminished national security. Even though President Sirisena says “I have given up power,” the constitution gives him power. He is: Head of State, Head of the executive, Head of the Cabinet, Commander in Chief, all of it. What about the scope and substance of the power? There are limitations that encourage responsible use of these powers. The limited term is as crucial to accountable governance. There are other provisions which have been built in here which take away that concept of an unaccountable strong executive. And so you have a new provision for instance, apart from the old provisions, of the concept of duties of the President. Duties were not specified anywhere in the constitution. The duty to respect the constitution, the duty and the duty to ensure that the constitution is respect, the duty to promote national reconciliation and ensure proper functioning of the constitutional council and to ensure that the elections commission would function in such a way as to ensure the creation of proper conditions for the conduct of free and fair elections. I think these statements of duties are very important, and not very symbolic. They give a process for questioning the exercise of power and ensuring some accountability. I am not sure the provision in the amendment that he cannot dissolve parliament up to four years is a good provision. It is, perhaps, a protection from the reality that Sri Lanka has experienced where parliament has been dissolved arbitrarily. We are a country with a history of a strong and accountable judicial system. And what we have witnessed over the years is political interfearance that has contributed to a lack of public confidence in the independence of the judiciary. The 19th amendment addresses the crisis of confidence.

The President’s powers of appointment are limited by the setting up of the constitutional council and various other provisions. And in the very appointment of the judges of the Supreme Court and the Court of Appeal there’s a procedure for consultation. Now this was actually argued out in a case where under the former constitution also it was argued that there was a duty of consultation with the Chief Justice. This has now been put into the constitution. So there is that concept of the Chief Justice having a voice. However one of the limitations in the 19th Amendment is that it has not addressed very unfortunately the critical issue of the removal of judges of the Supreme Court. I see that this is an omission. There is no change in the provisions for removal of Chief Justice and as many of you know these were extremely controversial during the time of the impeachment of Chief Justice Bandaranayke. The constitution council provisions are also important because they create independent commissions and as you have heard there are several of those in key areas of administration. The constitutional council also becomes an institution responsible for the key high posts in this country. And most importantly even the constitutional council has a very good provision which gives guidelines of whom they should appoint. It is incorporated in the constitution. For example it states, that they must appoint people by taking into account the pluralistic character of Sri Lankan society including gender. That’s perhaps the first time the constitution has referred to the concept of gender and this is extremely important because it is a guideline to the constitutional council on its responsibilities. The decisions of the constitutional council are backed by a provision which says they cannot be challenged by court of law, except for violation of fundamental rights. In this context it is interesting that there is also a reference to respect for pluralism and gender in the guidelines for the commission.

With regard to fundamental rights, references have already been made to the inclusion of a right to information, the jurisprudence of this country incorporated a right to information through the right to freedom of expression and speech but here is a specific reference to the right to information and this is a important. It has taken Parliament a long time to legislate in this area and now the constitution gives a clear mandate to introduce the legislators reorganizing that the right to information is essential to the democratic process. However the focus is essentially here on state accountability and there is no reference to private, non- state actors who are playing an increased role in public services like health and education. On independent commission there is an interesting new clause which provides legislature to establish a new bribery commission which will replace the old commission. And the guidelines and mandate for that commission are set in a very specific way and this is also very interesting because one of the specific provisions is that the in taking legislation will also have to incorporate the standards set internationally on preventing corruption. And specifically there’s a mention of the international standards and international conventions. That’s very unusual in this country because we have no reference in the constitution to any other international standard. In fact, there is no provision with regard to treaties in the constitution or a specific provision to cover the President’s powers with regard to treaties. However the provision on the Bribery commission introduces that international standard. And that hopefully will create an environment and a context later for the understanding the importance of international standards in the process of governance and can become even a guideline to the judiciary in trying to harmonize international and national law.

The cabinet and the executive again try to address the issue of jumbo cabinets which are all concerned about. The provisions are fairly generous and they also might eventually lead to a semi jumbo cabinet hopefully depending on the numbers that are being restricted. There is also the constitutional incorporation of cabinet and state ministers, and as a citizen, that is something I question. Why do we need the concept of cabinet ministers, state ministers and deputy ministers. And as citizens we can ask whether this does not discourage political patronage. Do we need that? As Professor Mohan Munasinghe said this Buddhist text as incorporated at the end of our Constitution “May the rains fall in season, may there be a good harvest and may the ruler be righteous” comes from a Buddhist text. If we interpret righteousness in the context of modern language we could say that righteousness is protecting the rights of the people. I believe that text incorporates that concept. Protecting the rights of the people which ultimately amounts to accountable good governance in the interest of the people. Our politicians lose sight of the fact that the concept of rights and the human right based approach to development is of the essence of the wellbeing of the people. And the essence of making rulers accountable to the people. If we achieve this goal and if we walk towards that goal through the 19th amendment and hopefully we can create a consensus on the need for new constitution making based on those values integrating the best of national norms with the international. If we achieve such a consensus, I think the future of this country, one could say, has begun with the 19th amendment.

Governance in broad terms encapsulates the importance of transparency, predictability, accountability, stakeholder participation, rule of law, anticorruption, independence of judiciary and media freedom, among others. Sri Lanka has suffered substantially in upholding many of these values in recent years largely due to the adoption of undemocratic and often ill-conceived policies and practices in implementing varied development programs. The determination of the new Government to overcome these tendencies forebodes well for the future of the country. This brief note tries to capture some of the priorities underscored in the 100 days program and evaluates the need to address some fundamental issues affecting the public service.

The efforts already taken to address blatant violations of the rule of law, including arbitrary removal of the former chief justice, civil and military restrictions placed on the former Army Commander and restrictions placed on media freedom, are welcome steps which should be further strengthened with more rigorous efforts aimed at improving transparency in the maintenance of law and order, banishing the cult of impunity that prevailed for so long and dedicated efforts to ensure effective administration of the principles of natural justice. Crucial to strengthening governance will inevitably have to go beyond the repeal of the 18thAmendment to the constitution and establishment of independent commissions as proposed, namely, a Judicial Services Commission, a Police Commission, a Public Service Commission, an Election Commission, a Commission against Bribery and Corruption, an Audit Service Commission and a Human Rights Commission, although this would undoubtedly set the pace and direction for moving towards a transparent and democratic process of governance. The effectiveness of these commissions however, would largely depend on the selection of commissioners who have a proven record of integrity and honesty and demonstrated ability to act with impartiality and fairness in adjudicating on cases.

The strength of commissions to act with due diligence and propriety would also be defined by the calibre of staff attached to work in these commissions. It is in this respect much needs to be done to restore people’s confidence in the public service which has eroded over time due to a variety of reasons within and outside the control of the public service. A relook at the public sector is considered appropriate at this juncture.

Public Sector

The public sector is largely focussed on broad based development administration with substantial importance attached to the planning and implementation of projects. Over the past thirty years about 40 percent of development projects have failed to achieve their intended objectives within the stipulated time frames or within the expected budgetary allocations, for lack of capacity to plan, implement and deliver in a coordinated and integrated manner. Some of the major factors that have impeded more effective public sector performance, including utilisation of foreign aid, could be summarised as follows:

(i) Organisations at central level do not adhere to a results-oriented management system, thereby lacking clear objectives and understanding of the scope of inputs required and the level of outputs and outcomes expected.

(ii) The rigidity of existing policy and implementation structures do not lend themselves to change in line with emerging needs.

(iii) Plurality of institutions and overlapping roles make decision making difficult.

The factors that have contributed to decline in capacity levels include politicisation of the public service, lack of an enabling environment for improving performance, inadequate punitive strategies, lack of consistent standards of recruitment to the public services, inadequacies in the compensation and benefit packages, disproportionate expansion of the public sector, and ethnic conflict and its debilitating impact on public sector morale.

The polticisation of the public sector arose out of a felt need, largely driven by the desire to transform a highly elitist pro-western bureaucracy to meet growing demands of a nation that had emerged from the shackles of colonialism. However, when public servants made use of this opportunity to seek favours and ignore tradition-bound value systems and ethical conduct, a service that had built its reputation on its ability to withstand political pressures, maintain impartiality, objectivity and transparency in its dealings since the time of the British rule, began to crumble. Loyalty was linked to political parties and individuals rather than to institutions and programs. Capacities were determined not on the basis of performance appraisals but on the basis of a public servant’s political affiliations and beliefs.

In as much as there were no reward systems based on performance there had also been no systematised approaches to adopting punitive measures against those who under performed. Except when issues became complex and serious irregularities were reported public servants got away with indiscipline and poor performance, largely unnoticed or ignored. The inadequacies in the disciplinary framework seriously impaired the efficient functioning of the public sector. Punctuality, discipline and commitment to work became rare commodities, partly because public servants did not have the opportunity to look up to any improvements in their career prospects. Irregularities in promotions and transfer, including political patronage in these areas brought about some level of demoralization and frustration among those who had hoped to build a career within their service.

The varying standards applied to recruitment to public sector positions also contributed to some quality deterioration. Consequent to the replacement of the Ceylon Civil Service with the Sri Lanka Administrative Service in 1963, for example, large scale recruitment took place for higher level positions, albeit with relatively less onerous requirements, ostensibly on the premise that larger numbers were required to fill in vacancies that had multiplied consequent to increased public sector involvement in diverse activities, including statutory undertakings. While the quality of most public servants that entered the work force was not in any way inferior to those who were admitted earlier, the level of admission requirements and the kind of in-house training provided before they were posted to responsible positions were reported to be less intensive and inadequate to meet the levels of leadership required for discharging their functions. In-house training before substantive postings became less and less emphasized also because of the compelling need to fill public sector vacancies expeditiously in Government institutions. Although the situation has shown signs of improvement in recent years, the backlog of qualitative deficiencies added to declining performance levels.

Inadequate salaries and poor working conditions have also had deleterious effects on productivity. Poor salaries could have been compensated by appropriate reward and incentive systems, but lack of such systems resulted in weakened morale and reduced commitment to perform. It is noteworthy that the new Government as one of its first initiatives increased the salaries of public servants thereby signifying the need for revamping the morale and efficiency of the public sector.

About three decades of ethnic conflict further added to the woes of the public service. The war situation caused anxiety, depression and helplessness among a substantial part of the working force resulting in lost working hours and weakened moral strength to withstand fear syndromes caused by suicide attacks and similar war related incidents.

The factors outlined above serve to highlight the malaise that set in over a period of over thirty years gradually eroding the commitment, dedication and loyalty of the public servants. It should not be assumed that the situation was all pervasive or that there were no qualitative differences. As in all situations, there were core groups among all categories of staff that continued to serve with dignity, dedication and commitment. This loyal coterie of public servants, in fact, contributed to saving the country from falling into deeper mires such as what occurred in countries like Indonesia, Myanmar and some of the South American countries.

A Case for Reorienting the Public Service

The need to reorient the public service has been recognized more than ever before. A reform agenda should ideally consist of the following:

Redeployment of superfluous staff in ministries and departments- the criteria for determining excess staff have to be worked out in consultation with key ministries and departments. Various approaches to staff reallocation and redeployment could be considered; viz, (i) there are time honoured performance standards which could be reemphasized in redeploying staff, (ii) those who are closer to retirement may be given “golden handshakes” with attractive benefit packages, (iii) voluntary retirement may also be encouraged to enable those unwilling or ill-prepared to conform to performance standards, (iv) some items of work could be outsourced to retired staff or private sector entities pending new recruitment and (v) new recruitment procedures should be enunciated giving emphasis to competence, qualifications and integrity issues.

Introducing systems to measure performance through a results-based management system. This system essentially defines objectives, outlines responsibilities and assesses performance based on outputs anticipated at every milestone of activity. Such a system helps ensure delivery of outputs in a timely and cost effective manner.

Performance appraisals should be considered a necessary component of a reformed public sector because of the inherent advantages that the system offers to evaluate strengths and weaknesses of staff.

Adoption of a systematic approach to provision of training to the different levels of staff based on priority needs identified through annual performance appraisals. In particular, training should be provided in the areas of (i) project preparation and planning, (ii) project implementation and management, (iii) project monitoring and evaluation and on (iv) results-based management concepts. Public sector organizations should be held accountable for results and this would be possible only if public servants are fully conversant with results-based management concepts.

Provision of incentives/rewards to high performers among the public sector staff would help to uplift the morale and enthusiasm and contribute to enhanced performance. Lack of such a system has often been highlighted as one of the factors contributing to less than satisfactory performance.

The role of the public sector in Sri Lanka to accelerate development would increase substantially in the future consequent to increased economic activity. Capacity to absorb increased aid would be largely dependent on the extent to which public service reforms are carried out, including the introduction of new results based procedures and processes for enhanced decision making, and commitment to deliver. Decision making must be devoid of political patronage and should be based on judgments that reflect the integrity and impartiality of decision makers.

While a reformed public sector would pay dividends in the long term, immediate attention may need to be focused on improving the capacity of devolved provincial entities to carry out the programs of reconstruction, reconciliation and development. It would be essential to ensure that competent staff whose credentials have been suitably tested for achieving desired implementation outcomes are transferred to devolved entities.

Role of Provincial Councils

The Provincial Councils should not only have access to funding resources but should also have the capacity to assess needs, prepare programs of action and implement, monitor and evaluate them in due time. A major intervention in this respect would be to look at the current structure and capacity dimensions of the public service at provincial levels. The reform agenda should examine the staffing capacity of public sector entities at the provincial level and appropriate interventions should be made to provide leadership training to implement specialised action programs formulated to enhance development activities in the war torn areas of the north and east. The private sector’s role in this regard also needs to be redefined in the context of changed circumstances.

Conclusion

In the ultimate analysis, good governance and development would depend on the quality, integrity, commitment and dedication of the public service which has the overall task of implementing development programs for reconstruction and development at both central and provincial levels. The initiative taken to uplift the morale of the public service through sizable salary increases in the recent budget should be accompanied by the introduction of incentive/reward systems that acknowledge superior performance and increased productivity.

In a recent article by Dayan Jayatilleka (Colombo Telegraph, March 3 2015) has stated that Tamils in Sri Lanka are an ethnic minority but not a nation. However, Sinhalese are a nation within the broader Sri Lankan nation. The basis for his argument is that the Sinhalese are the majority in demographic terms whereas the Tamils are a numerical minority. In essence, he is using the demographic factor to define a nation. This is not only quite misleading but also goes against the developments in the international law, minority rights, UN deliberations in regard to indigenous peoples and ethnic minorities around the world during the last few decades. I believe the confusion here can be partly eliminated by employing the distinction between a nation-state and a nation.

Jayatilleka further states that ‘One may well ask, “what is wrong in the claim of Tamil nationhood?” Probably nothing, except for the fact that the claim is made here in Sri Lanka. The Tamils may or may not be a nation, but if they are, it would be in Tamil Nadu, not in Sri Lanka’ (CT March 3, 2015). This is a quite interesting but also a concerning argument coming from a political scientist of repute who should know that this is not a feasible option for Sri Lankan Tamils. Sri Lankan Tamils, though having close cultural and ethnic relations with those in Tamil Nadu, are for all intents and purposes citizens of Sri Lanka –Not Tamil Nadu. If they are seeking nation status within the Sri Lankan nation-state, then their claim should be assessed on its own merit.

Jayatilleka seems to recognize that there is a broader, emergent nation called Sri Lankan nation but his criteria applies only to the Sinhalese –not the Tamils who he considers as ‘ethnic or national minority’ (CT March 3 2015). This is a highly discriminatory criteria to use in this day and age when the discourses about nation-state vs. nation have progressed so much to the extent that there is absolutely no place for this sort of misleading and biased criteria in the broader community of international scholarship or in the international law field.

The article by Jayatilleka raises several pertinent questions also. Firstly, is the use of demographic factor to define a nation widely accepted in international law, political and social sciences, by governments and by those ethnic and indigenous minorities seeking nation status around the world? In other words, where does this idea derive its authenticity or legitimacy perhaps other than in his own imagination? Secondly, using this definition how many other majorities in various countries could be considered as nations? For example, are Brahmin Hindus in India a nation but the Tamils in Tamil Nadu or other linguistic minorities not a nation? Thirdly, are there characteristics of a nation other than the demographic factor? Fourthly, is it possible to define a nation in Sri Lanka purely by what the Sinhala and Tamil political leaders have said in the past without giving due regard to the developments in the global context, in particular within the UN and its agencies plus in international law? Fifthly, is it possible to discard two-nation theory merely because it has ‘become a dirty word in neighbouring India’ (Colombo Telegraph, March 3, 2015)? Sixthly, do ethnic and indigenous minorities with historical, cultural, and territorial connection to a given land have the right to seek nation status within a nation-state even though the governments in the nation-states may reject such rights?

A cursory glance at any reputed dictionary shows that the definition of a nation varies considerably from the demographic definition used by Jayatilleka. For example, the Oxford Dictionary defines nation as ‘a large body of people united by common descent, history, culture, or language, inhabiting a particular state or territory’. The Free Dictionary gives several meanings to nation:

1) a. A relatively large group of people organized under a single, usually independent government; a country. b. The territory occupied by such a group of people.

The Collins dictionary defines nation as 1. An aggregation of people or peoples of one or more cultures, races, etc, organized into a single state ⇒ “the Australian nation”. 2. A community of persons not constituting a state but bound by common descent, language, history, etc ⇒ “the French-Canadian nation” 3. A federation of tribes, esp American Indians, b. the territory occupied by such a federation.

These definitions in widely used dictionaries highlight the difference between nation-state that is a political entity with international recognition and those tribes, ethnic and linguistic minorities as well as indigenous peoples who are seeking nation status within a nation-state. Yet Jayatilleka’s criterion for defining a nation gloss over this distinction seemingly to proclaim Tamils in Sri Lanka are not a nation but the Sinhalese are? This is the same argument that ultra Sinhalese nationalists including governments of the day during the 30 year war used to deny the Tamils certain rights on the basis of their historical, cultural, linguistic commonality. One must acknowledge that this claim to nation status was diluted in the concerted attempt by the LTTE to claim a separate state in the northern and eastern provinces through an armed struggle against the Sri Lankan nation-state. Yet in this post-war era, we have to be open to developments and models available in the global context that guarantees certain group rights for ethnic and indigenous minorities. In particular, one has to examine the concept of nation these minorities utilize as their flag post to seek equal rights, non-discrimination, self-determination and legitimacy.

There is a plethora of literature available on how the nations and nation states emerged in Europe. Interested readers can access this vast literature on the subject. However, if we focus on how the nation-state concept emerged through the UN in the aftermath of the decolonisation and emergence of independent states, it is highly informative. It is also highly informative to look at Covenants such as the Civil and Political Rights where the concept of ‘peoples’ is used. The United National Declarations and Covenants are important instruments that define the status of ‘peoples’ while providing legal definitions of rights and responsibilities applicable to international law. UN Declaration of Human Rights is another key document. Depending on how states define who the ‘people’ are, the consequences on the rights of Ethnic Nations can differ. Norwegian government has allowed certain rights for the Sami people including a parliament in areas where they inhabit providing a degree of self-rule.

In countries like Canada, there were many Indian nations inhabiting the country prior to the arrival of the Europeans. ‘By the time the European explorers arrived in Canada, the boundaries marking each Nation’s territories had been in the process of definition for thousands of years. Within their territory, each nation evolved with its own language, laws, history and spiritual practices’ (Mandel, L 1986: 102). This article examines the way these Nations were delegitimised and Indians were dispossessed by the European/British settlement starting from the 14th century. There are similar accounts of over 200 Nations existing in Australia among the Aborigines before the British settlement. These are referred to as First Nations. Examples abound from various parts of the world about First nations in many countries subsumed under nation-States. The struggles of these First Nations are to be recognised as original inhabitants of their lands by the respective governments –not simply as ethnic minorities. In Sri Lanka’s case, Veddas occupy a similar status to the First Nation concept. Whether Sri Lankan Tamils qualify to be a First nation is questionable because they are not considered, according to historical records, as the first inhabitants of the country or northern and eastern provinces. Nonetheless, their long history of living in a certain part of the country preserving linguistic, cultural and ethnic features distinct from the majority Sinhalese deserve to be adequately considered along with the developments that have taken place in world fora and in international law pertaining to the definition of ‘Peoples’, ‘Nations’etc. in comparison to the rights of nation-states. Though the world is governed by nation-states, which exercise self-determination, sovereignty etc. it does not mean minority groups or ethnic nations cannot seek their legitimate rights within such states.

The main claims and demands by First nations are for self-determination. It includes self-government, autonomy, territorial integrity and exclusive enjoyment of their lands and resources. Universal Declaration of Indigenous People’s Rights adopted by the UN is a significant milestone in the struggle of indigenous peoples seeking equality, self-determination and other rights. It has been ratified by many governments by now.

Australian Aborigines are seeking First Nation status within the Australian nation-state. Their campaign is linked to the worldwide campaign by indigenous peoples.

One notable factor in regard to the Tamils in Sri Lanka in comparison to Canadian Indians or Australian Aborigines is the absence of a clear-cut assimilation policy adopted by governments led by the Sinhalese majority.

Nations Within States and Stateless Nations

According to Wegnar (2008),

The possibility of legitimating various forms of political autonomy is not necessarily uniquely limited to indigenous peoples. Examples can be found from around the world where other types of national minorities also have long lasting historical connections to specific parts of a state’s territory, which may very well give them a justifiable claim for political autonomy.

The Nation concept has been enlarged in the last few decades to not only includes indigenous peoples but also to include distinctive peoples within states and Stateless nations, e.g. Tibetans. Within states there are groupings or communities –though minority compared to the majority- claiming specific group rights like self-determination rights rather than individual rights offered by liberal democracies. A key feature in the contemporary political and legal discourses on the subject is if they are treated by the states and/or the majorities as ethnic minorities they forego their group rights.

Some use the concept of national minorities to differentiate specific groups from ethnic minorities. ‘For example Kymlicka (1995:27) argues that national minorities have a right to autonomy; that is, they have a right, as far as possible, to keep their traditional social institutions intact and to govern themselves. Ethnic groups, on the other hand, cannot claim a right to..political autonomy’ (Weigard 2008:181-182).

The fact that states and majorities in certain states resist claims of self-determination by Peoples/Nations within states or stateless Peoples/Nations does not mean that their agitations and campaigns are invalid or less significant. It is a continuing struggle between peoples or nations as defined by these groupings and the states and majorities holding political power. Whether a claim by a given national minority or a Nation is justifiable depends on a range of contextually specific factors. However, universal norms are being developed by member states of the UN to address situations like this specifically to do with indigenous peoples and to a lessor extent national minorities claiming equality and self-determination. The self-determination claims by such nations and/or national minorities are mostly for ‘internal self determination’ (without separation from the state) rather than ‘external’. However, as can be seen frequently in the Sri Lankan political discourse pertaining to this matter, the two are mixed and presented as if they are one and the same. This can have serious consequences for reconciliation and coexistence.

The question of nationalisms also arises from the majority and national minority political behaviour. According to Craigie (2010),

Majority nationalism is especially dangerous for political state-wide cohesion if the minority group begins to feel that a) their way of seeing things is different from the majority, b) that this is generally not understood or recognized by the majority, and c) the majority is not willing to alter forms of debate to accommodate this difference and the minority is being systematically unheard, its voice unable to penetrate public debate (Taylor 1998: 204).

The burning in Jaffna by a group including TNA representatives of an effigy of M.A. Sumanthiran, TNA MP, induces déjà vu in me. Mr. R. Sampanthanthe TNA leader and Mr. Sumanthiran took a bold step in attending the recent Independence Day celebrations, the first time the Tamil leadership has done that after the 1972 constitution’s promulgation. Many Tamils feel that it has no legitimacy because Tamils did not vote for it and it removed their protection under article 29(2).

Count Otto von Bismarck enunciated the wisdom of Realpolitik: “Politics is the art of the possible, the attainable — the art of the next best.” Sampanthan is the bold Tamil leader who, exercising the wisdom of that adage, urged the Tamil people to vote for President Maitripala Sirisena on Jan. 8. Tamils followed him. And this has irked rabid nationalists within the TNA whose politics is fueled by hate. Mischievous headlines like in the Colombo Mirror declared that the TNA condemned Sampanthan whereas the statement was by a TNA MP who sees Sumanthiran as a rival for succession. There has been no TNA decision condemning Sampanthan.

What Sampanthan and Sumanthiran did is what leaders do – lead. They do not go back to the party to ask at every step whether they may do this or that. Explained Mr. Sampanthan to the BBC Tamil service: “The decision to attend the celebration was made after careful consideration.” Regime change, the Tamil people’s future, and faith in the new ruler were the key reasons, he is reported to have explained.

We Sri Lankans are politically at a critical juncture. Just as there are communal hawks in the TNA, there too are communalists in the government. That is how democracy works on both sides. The leaderships on both sides, however, are committed to peace, reconciliation and reconstruction. The government might be slow but it has a lot on its plate and its bona fides are seen at least in the release of lands occupied by the army.

The engagement of the TNA in government now is critical. To be crying that the Sinhalese always go back on their promises would be self-fulfilling and would make it very difficult for the government to deliver because a hawkish TNA would strengthen the hawks in government. I personally would like to see the TNA accepting cabinet portfolios to guide the government and counter the extremists in cabinet discussions.

My déjà vu is from the days of Amirthalingam. He engaged the government of the day. His period (counting from 1970 when SJV Chelvanayagam was frail and Amirthalingam was running the FP) saw university students being coached in the importance of constitutional government. We were given weekly lectures on issues at SJV Chevanayagam’s home down Alfred House Gardens. When H.L. de Silva defended the 1972 constitution before the youth at Methodist Church Mount Lavinia, I pointed out the lacunae in the new constitution; upon which he weakly ended the discussion saying he would have presented things differently if he had known the audience had read the constitution. Despite his commitment to the rule of law and leadership in building future leaders with that commitment, Amirthalingam was spurned by JR. In turn Amirthalingam was spurned by Tamil youth of my time who unfairly referred to him with disdain for drinking tea with JR. Extremism took over and many Sinhalese would later rue the day they did not settle with Amirthalingam.

Today we lack Tamils fluent in English who can read the many strands of thought available widely in English and engage the Sinhalese. The field is left open to extremists. University youth are cut off from the liberal ideals of previous generations because they can read only Tamil language websites. (The Sinhalese situation is not as parlous as judged by who passes SAT and GRE English tests to get university admissions in the US). As a result Tamil youth lack choice in getting leaders who can articulate themselves to outsiders.

This is the challenge before the universities serving the North and the East where those comfortable in English are few and confined to the staff. A petition dated 24 Feb. (today is 22 Feb.) to the UN High Commissioner for Human Rights by the Jaffna University Teachers’ Association (JUTA) says, among other things,

“We understand that you recommended the postponement of the report, inter alia, with the hope that the new Government headed by President Maithripala Sirisena will initiate a credible domestic mechanism to investigate into the mass atrocities committed during the civil war in Sri Lanka. Given the current composition of the Government (which includes those who took an active part in the war) and prior history relating to domestic mechanisms having failed to deliver justice, we wish to make it very clear that we have no faith in any domestic mechanism that this Government may establish. Given our long experience with Sinhala Buddhist hegemonic institutions that dominate Sri Lanka’s politics we have no faith that members of the Sri Lankan armed forces will ever be prosecuted locally for any wrong doing. International supervision of any domestic mechanism will only serve to waste time.”

These fears reflect what many Tamil people think. This is why both Sampanthan and Sumanthiran were emphatic that the report should be released now. Although the UN has a point in saying that more evidence could be forthcoming if the government cooperates, that is no good reason to stop the interim report. But given the postponement, the issue has been hijacked by Tamil extremists to work against the two moderate leaders, untruthfully accusing Sumanthiran of secretly agreeing with the UNHRC to the postponement. Already some JUTA members are protesting that the decision as reported to the media is not what was actually passed and that the university community is being mobilized “on the basis of a resolution that has been falsely represented.” The JUTA statement goes on to contradict Sampanthan that the Tamil people voted in large numbers for President Sirisena as an anti-Rajapaksa vote and did not vote with the hope of any substantive change resulting from regime change.

This JUTA claim would seem incendiary to a government trying to introduce change for the better. As Mr. Sampanthan said in defending his decision to attend the Independence Day celebration, his participation will only send all people in this country a good message. Amen to that! I urge Mr. Sampanthan or Mr. Sumanthiran to join the cabinet and engage the state more so that delays are avoided and the cabinet gets a full perspective on Tamil worries and aspirations. I do not want them to leave the field open to extremists in the cabinet, and go the way of Mr. Amirthalingam. That would be sad for all Sri Lankans.

Removing the impediments in the 13th amendment is imperative to achieve national reconciliation and peace

Territorial integration may be achieved by the armed forces, but national unity of communities can be achieved only by the appropriate political process. Absence of war here indicates only the silence of guns and not the attainment of sustainable peace. De-communalized nation, democratized political system and demilitarized State are imperative to rightly put Sri Lankan political economy in a progressive path through which Sri Lanka can achieve true independence and sustainable development. Majoritarian arrogance and ambitions have thrown this country into the orbit of political vicious circle that persistently enlarges the crisis, chaos and conflicts. Sri Lanka is a multi-national country which has been divided ethnically, religiously and regionally not by the actions of the common people but by the power hungry politicians. Divisive and destructive political leaders endangered and alienated the minority nationalities and deceived the majority nationality by promoting the politics of Sinhala hegemony versus Tamil sectarianism. Unity of Sri Lanka cannot be achieved by the compulsions of All Powerful hegemonic leadership but by honest compassion, true conciliation and mutual consensus.

It is well known that the Constitution of Sri Lanka of 1978 was made by Mr. JR Jeyewardane with the sole purpose of making himself His Majesty of All Powerful. Accordingly, he inserted effective provisions and protections for him to act freely with full immunities, converted all governmental institutions in order to direct in support of his whims and fancies and facilitated himself to use all the resources of the State at his personal will. To democratize the existing Constitution, the proposed amendments should be made with clear objectives that every amendment to the Constitution would completely remove the Authoritarianism- based-structures of the Constitution.

There is a widespread urge in Sri Lanka that the existing Constitution should be replaced by a reformed new Constitution that shall ensure all human and fundamental rights to all the people, social justice, political freedoms, economic equities, truly functioning democratic political system, independency of judiciary, rule of law and so on. Given the fact that the present political environment and formation of the present government in power is not appropriate to adopt a new constitution, the proposed amendments to the existing Constitution should include the provisions to remove all existing provisions that were and could be used as loopholes to unanswerably rule the State, unaccountably use the State resources and unquestionably reign the people.

Eradication of armed LTTE is not equivalent to the solution or settlement of the ethnic issues. Ethnic conflict in Sri Lanka entered into the international arena in 1983 and still is in serious concerns of the various international communities, which are, in different context, have interests in Sri Lankan resources and its location. Therefore, people who have illusory mind holding that the ethnic problem of Sri Lanka is always an internal matter are either misunderstood the reality or deliberately attempting to deceive the concerned sections. However, it can be resolved internally if the Sinhala leaders of major political parties have a united will and thereby the residual matters may be contained to become part of the internal matters of Sri Lanka.

There is an urgency to resolve the problem reasonably as early as possible before it takes another dimension. It is a historical opportunity that has made the presently emerged unity of major political parties of all communities. To achieve such a situation again in Sri Lanka, the country has to undergo again through another set of serious national crisis inflicting countless deaths of people, destructions of multi-billion worth of properties and dilapidation of all democratic institutions. I, therefore request the law makers to include the amendments in respect of the 13th Amendment (13A) also so that the Provincial Councils (PCs) shall serve to the basic aspirations and socio-economic developments of the people of their respective regions.

Many may argue that the 100 days programme does not include anything about devolution of powers to the PCs or to find any political solution to the ethnic problem. Reason for such non-inclusion is well known among the political circles. Some may say that the present coalition in power is a delicate alliance that includes anti-devolution forces. Managing the extremist forces is a matter of concerns of the majority people – supported – moderate political leaders. Urgent Need of the hour for achieving the desired national reconciliation and social harmony is the devolution of powers to the PCs in compliance with the basics of the 13A so that the people and socio-political forces of the respective provinces could feel that their PCs are substantially useful.

I do not want here to debate as to whether the powers devolved to the PCs are sufficient or insufficient and therefore do not submit any suggestion requesting any major correction to be made in the 13A in order to provide more powers to the PCs. However, it is to be noted that as long as the existing major defects in the 13A sustain in so much as its own clauses disable its body as a whole from functioning constructively, the devolutionary process shall continue to be in suspension and the existence of the PCs is a sham deluding the demand of reasonable political solution to the ethnic conflict persisting in Sri Lanka for last more than 85 years. It is therefore imperative, to rectify the 13A in order to make the PCs effectively and efficiently workable and useful to the people, by removing and replacing such provisions which are contradictory to the basic objectives of the establishment of the PCs. Since the Constitution is the supreme and not either the President or the Central Government, the progressive functioning and sustainability of the PCs should not be left with the whims and fancies of the President or the Central Government of Sri Lanka (CGSL) but be ensured unequivocally by the legal provisions enshrined in the Constitution.

I humbly here submit in brief the principles to be considered for the amendments to be made in respect of the 13A, to the consideration of the Constitutional Experts presently engaged in drafting the Amendment Proposal. The Proposed amendments should ensure:

1. GOVERNORS:-

That the President should not appoint any serving public servant to the post of Governor.

That the Governors should not act in politics when they are in office.

That the PCs should be under the Governor’s rule during the election for the provincial councilors from the date of nomination to the date of new Chief Minister (CM) ’s swearing in.

That during the Governor’s rule under emergency or otherwise, the Governors may act on the advice of an advisory body consisting legal and administrative experts appointed by the President and in any event, the CGSL or any of its ministers shall not interfere directly with or take over the executive powers of the PCs.

That only the Constitution should require the Governors to act at their discretion in any of their functions and such discretionary functions should have been provided not impliedly but expressly and specifically by the Constitution.

That even if any part of the Constitutional provision requires the Governors, without specifying their discretion, to act in any specified function in any matter substantially or incidentally relating to the executive functions and powers of the PCs including the business of the Legislative Assembly, all such powers should be exercised only in aid and in accordance with the advice of the CMs or the Council of Ministers (CoMs) of their respective PCs.

2. PROVINCIAL COUNCILS ACT OF 1987:-

That the Governors should not engage themselves directly in any executive functions as regards to which they are not required by the Constitution or by any statute of the respective PC to act at their discretion.

That since either the 13A or any other part of the Constitution has not provided so far any executive function to be acted by the Governors at their discretion, the Constitution must make sure that the executive powers in functions, specified in the Provincial Councils Act of 1987 (PCA of 1987) for the Governors to act, should be exercised in compliance with the first part of the Art. 154C and F of the Constitution and not otherwise in any manner. Governors or any administrator should not be allowed to interpret the Constitutional provisions at their own understanding or desire.

That the PCA of 1987 should be replaced by a new act drafted clearly in consistent to the provisions of the 13A and in order to remove the unnecessary interferences of the CGSL

3. POWERS AND RIGHTS OF THE PCs:-

That it must be made clear that non implementation of any provision of the Constitution also is unconstitutional. Neither the President nor the CGSL has any right or power to deny any right or power provided by the Constitution to the PCs, without the reasons defined in the Constitution. Hence, the Constitution must have the provision for making the President and the CGSL liable to uphold each and every provision of the Constitution and to do their duties accordingly in order to ensure all the provisions of the Constitutions are implemented fully and properly and also to make sure that all the institutions and branches of the State also duly function in compliance to the Constitution.

4. CONCURRENT LIST:-

That the ambiguities regarding the “Concurrent List (CL)” should be removed by constitutionally specified provisions clearly distributing as to the executive powers on the subjects listed in the CL and as such powers are on which subjects necessarily reserved to the CGSL and on which subjects completely left to the Provincial Executives and also on which subjects both are allowed to act.

That the legislative superiority of the Parliament over the “concurrent subjects” on which the PCs have the executive powers should be defined so that the CGSL shall not discreetly or otherwise acquire such executive powers of the PCs.

5. FINANCE TO THE PCs:-

That the distribution of a certain percentage of Income Tax collected by the CGSL to the PCs should be guaranteed by the Constitution

That the personnel and properties of the departments collecting the revenues mentioned in the Provincial List should be transferred to the PCs.

That the National Finance Commission (NFC) should be constituted and commence its functions with immediate effect and the Constitution should ensure permanent existence of the NFC in all circumstances.

That the Turn Over Taxes (TOT) on whole sale and retail sales should be restored as it was originally in the government revenue when the 13A was enacted by the Parliament. Maximum and minimum limit of such taxations and the specifically exempted items from such taxations should be declared only by the Budget of the CGSL. The exceptional part in the item No.36(1) of the Provincial List should not be misinterpreted as it allows the CGSL to take away the revenue of the TOT. The VAT or GST is not at all a new taxation but a reformatted TOT only. All changes made through introduction of VAT, GST and so on by sucking the incomes from the TOT after the 13A came in to force should not be allowed to make any depletion in the mandatory revenue of the PCs and therefore all such changes made after 1988 should be treated as part of the TOT revenue.

That there are more than 20 revenue items marked in the Provincial List of the 13A for the PCs to determine and collect and those are at present determined and collected by the CGSL. These collections should not be treated as a part of the revenue of the CGSL but mandatorily to be transferred to the Provincial Consolidated Fund (PCF).

5. Provincial Police:

That Constitutionally PCs are charged with the responsibilities of law and order, collection of certain taxes and fees, controlling and regulating duties in number of affairs. These duties cannot be discharged without the aid of the police institution and personnel. Therefore, the devolution of police is a must and the denial is unconstitutional.

That the identity of a policeperson is established not by the kind of weapon he carries but by the uniform he wears. What type of uniform a policeperson has to wear and what kind of weapon such policeperson should carry are decided not by PCs but by the CGSL. Therefore delaying the devolution of police power is an unjustifiable act.

That the appointments of Provincial Police Commission and the Deputy Inspector General (DIG) of the province should be made in accordance with the Constitution and the police cadres of all ranks should be deputed to function accordingly.That the DIGs should begin to function in accordance with the clause 11(1) of the Appendix to the Provincial List in the 13A. The said clause is the crucial one in respect of the devolution of the police powers to the PCs to preserve the law and order, protect the peace and internal security and prevent any violation of any law. So, such functions emphasize the need of various inner institutions in the Provincial Police. Therefore, the said clause 11(1) needs to be further clarified with additional sub-clauses and necessary explanatory provisos.

6. PUBLIC SERVICE OF THE PCs:

That the Chief Secretary, other Secretaries to the provincial ministries, Directors of the departments and Commissioners of the statutory authorities functioning under the PCs and the Divisional Secretaries (Assistant Government Agents) should be appointed by the Governor on the advice of the Council of Ministers, from the Sri Lanka Administrative Service (SLAS) officers deputed or seconded to serve under the PCs’.

That the SLAS officer’s deputed or seconded to the PCs must function as the cadres of the PCs and their transfers back to the Central Government administration should be made only with the consent of the respective Chief Minister and the particular officers.

That a permanently workable solution in respect of the dispute as to how the Government Agents can function under the two masters at a time is yet to be determined appropriately or otherwise alternatively an equivalent post should be established by the PCs to head the provincial administration at the district level.

That the rules and regulations to the PCs’ administration at all levels should be made by the Governors on the advice of the respective Council of Ministers, in line with the general administrative guidelines made by the National Public Service Commission or followed by the Central Government.

That the power of recruitment of personnel to the provincial services and the power of promotion and dismissal of such personnel should be vested with the Provincial Council of Ministers (PCoM) provided such actions are scrutinized by the Provincial Public Service Commission (PPSC) as to whether such actions are done justifiably and in compliance with the rules and regulations of the public services. The PPSC should function in such matters in accordance with the guidelines made by the Governor on the advice of the Council of Ministers. However, the decision as to where such servants to be posted and in respect of suspending and taking disciplinary action on any of such servants from the service in case of necessity should be made by the CM or the PCoM, because the collective responsibility of the provincial administration is constitutionally burdened on the PCoM.

That it is ridiculous establishing a parallel government body at provincial level in the name of PPSC to hold the full power to provide employment to the Provincial Public Service (PPS) and authorities over the provincial public servants in the matters of appointments, disciplines, transfers, disciplinary actions, suspensions and dismissals whereas the PCs are burdened with only the responsibilities to manage, direct and look after such servants and thereby the PCs are forced to administer the provincial affairs only at the desire of the such public servants, over whom the PCs have no authority.

That the PPSC may be vested with certain powers to function independently as a Tribunal to decide the matters in disputes regarding appointments, transfers, disciplinary actions, suspensions and dismissal of provincial public servants. It also can function as an advisor body to the Provincial Executives in the administrative matters.

That there should not be any Ministry at the Central Government in the name and style of subjects that have been fully devolved to the PCs by the Constitution and also in the name of the subjects left by the law of the Parliament to the executive functions of the PCs.

That the confusions prevailing in the Constitution in respect of the term ”Provincial Council” should be cleared as to where it means “Provincial Legislative Assembly”, where it means Provincial Council of Ministers and where it means “Provincial Administrative Bureaucracy”. and

The interpretation of the terms like “National Policy”, “National Programme”, “National Importance”, “National Interests”, “National Highways”, “National Schools”, “Special Purposes Hospitals”, “National Service”, and “National Security” should be provided in the Constitution so that the Parliament or the Central Government shall not encroach into the legislative or executive spheres of the PCs.

Finally, I wish to suggest to the Constitutional Amendment Makers to include an independent commission called “DEVOLUTION COMMISSION (DC)” to be appointed by the proposed Constitutional Council. Although the Supreme Court is the ultimate forum to interpret the provisions of the Constitution, everyone for everything should not and cannot approach the Supreme Court to get the relief or correct position. Particularly, since the issues regarding the devolution are politically sensitive it should be resolved and settled as much as possible at a closed-door forum that comprises impartial and experienced experts in judicial and administrative fields. The proposed DC may function as an “advisor body” to the Centre and the PCs in getting proper understanding of the Constitutional provisions and also function as a “Dispute Clearing House” between the Centre and the PCs and also between the PCs.

Sri Lanka’s Right to Information Bill requires further improvement says the Article19, London based international organization for global campaign for free expression.

Issuing a statement today the Article 19 said; “The draft Bill is a good start on achieving the fundamental right of information in Sri Lanka. However, the Bill needs to be further improved and clarified preferably before it is put before Parliament, or at least by Parliamentarians themselves.”

We publish below the statement in full;

Article 19 welcomes the new government’s commitment to creating a long awaited right to information law. However the draft requires some improvement and clarification before it is adopted.

A draft Right to Information Bill was shared by the new Sri Lankan Government with stakeholders last week and is due to be presented before Parliament on 20 February. The Government has stated its intention for Parliament to adopt the law within three weeks.

The new Government’s commitment to instilling a new culture of openness and transparency is commendable. Sri Lanka has been discussing legislating to protect the right to information for many years and came close to adopting a law in 2002.

However, while the draft Bill contains many positive attributes, such as the 10-year rule on providing secret information and the overriding of existing secrecy legislation, it has a number of flaws and is not completely in line with contemporary international standards. The Bill should be improved and clarified in the following ways:

WEAK PROVISIONS OPEN TO ABUSE

The Bill should recognise that any person regardless of citizenship status has the right to information. The limitation may result in officials preventing marginalised people – such as those living in extreme poverty – from making requests by imposing burdensome requests for identity and proof of citizenship.

The Bill should explicitly state that people do not have to justify or explain the reason for their request. Without such explicit provisions, some officials may try to require applicants to declare their intentions and refuse to accept them, which creates a chilling effect.

The appointments for the Information Commission should be clarified to that only candidates recommended by the Constitutional Council are appointed, rather than by the media minister; the Secretary of the Media Minister should not be a member; the commission should choose its own president.

The timescale of responding and providing information should be shortened. 28 working days (nearly 6 weeks) is far too long for persons to receive information.

The provisions on republication of information that is released (a31) should be deleted and replaced with a provision stating that all information released is freely re-publishable and reusable.

SCOPE IN SOME DEFINITIONS IS TOO NARROW

The term “official information” should be replaced with “information” to prevent officials determining that information that it holds is not “official” and the related definition broadened and defined as “any information in any form held by a public authority”.

The definition of “public authorities” should be broadened to ensure that all public and private bodies that are conducting public business are covered.

The definition of “public interest” should be clarified to ensure that the bills goals of promoting accountability, ensuring public participation, proper spending and other public interests are considered.

The provisions for “affirmative publication” of information relating to reports and projects should be expanded. The Bill should provide for “regular publication” and include information on contracts, budgets, spending and so forth. The information should be released in open data format when applicable.

CLARIFICATION NEEDED

The decisions of the Information Commission should be made clearly binding under 14(c) and should be clarified to provide for an authority to order its release.

The provisions on fees should be clarified – currently there seems to be a presumption that requests are made with fees under 25(1).

The exemptions require some clarification. Provision (e) is unnecessary as medical records are covered under (a), and provisions (g) and (i) are too broad. Provision (j) does not make sense, as people should be allowed to see their exam results in order to prevent fraud and improper grading.

The bill should state that the provisions go into effect within a specific time frame (1-2 years) after its signing. A whole separate law on protecting whistleblowers should be adopted to ensure adequate protections.

The draft Bill is a good start on achieving the fundamental right of information in Sri Lanka. However, the Bill needs to be further improved and clarified preferably before it is put before Parliament, or at least by Parliamentarians themselves.